Texas Telephone Solicitation Act

Texas Telephone Solicitation Act

Texas Telephone Solicitation Act

Telemarketing is an important tool used by many businesses to generate revenues, but it can also expose consumers to misinformation and fraud. That’s why Texas lawmakers passed important consumer protection laws that explicitly prohibit false, misleading, or deceptive practices. One such law is the Texas Telephone Solicitation Act, which regulates attempts by companies to sell or rent property, products, or services to consumers via telephone solicitation. The law is part of the Texas Business and Commerce Code, which protects consumers against a wide range of fraudulent business practices. The section of the statute governing telephone solicitations is meant to protect purchasers against false, misleading, or deceptive practices on sales calls. When a company makes a sales call, they must abide by the guidelines set forth in the statute. This includes filing a registration statement that contains relevant sales information, as well as making required disclosures to purchasers during telephone solicitations about both the company and the items for sale.

To learn more about the Texas Telephone Solicitation Act and the protections it affords consumers, keep reading this blog.

What Is the Texas Telephone Solicitation Act?

The Telephone Solicitation Act is codified in Texas Bus. & Com. Code, Title 10, Subtitle A, Chapter 302. The statute defines a “telephone solicitation” as a telephone call that is initiated to induce someone to buy, rent, claim, or receive an item. Importantly, the Texas law also covers phone calls made by consumers in response to a solicitation that was sent electronically (e.g., an email) or physically (e.g., a letter in the mail). Moreover, the law applies to calls placed manually, calls initiated by an automatic dialing machine, and calls that involve a recorded messaging device.

Telephone Solicitation Registration Requirements in Texas

The requirements of the Texas Telephone Solicitation Act are strictly enforced, with any violation by a telemarketer possibly triggering both civil and criminal penalties. The statute imposes requirements on companies both during the registration process and when the phone solicitation is made.

Seller Disclosures at Registration

Before making a telephone solicitation, sellers must first fill out a Telephone Solicitation Registration Statement and obtain a registration certificate for their business. Moreover, the registration statement must list each telephone number that will be used by the seller, as well as the specific locations from which any phone solicitations will be made. Other sales information that must be disclosed in the statement includes a copy of all telephone solicitation scripts and other material provided to salespersons, a copy of any written material that might be sent to consumers, and the contact information for outside product suppliers.

The registration statement is filed with the Texas Secretary of State, and it must identify each principal of the seller: owners, executive officers, general partners, trustees, etc. The registration certificate is valid for one year, and it must be renewed annually. Additionally, for every three-month period after the certificate was issued, the business must provide information for each salesperson who solicited on behalf of the business.

One of the most important requirements imposed by the Telephone Solicitation Act is the security requirement: sellers must submit a security deposit in the amount of $10,000. The deposit is meant to ensure that the seller complies with the law. When a seller is found to have violated the statute, the deposit may be used as payment for any penalties imposed by the court.

Seller Disclosures on the Call

In addition to requiring disclosures in the registration statement filed with the state, the Texas Telephone Solicitation Act also compels companies to make certain disclosures to consumers before a purchase is made through a phone solicitation. For example, prior to the finalization of any transaction on a sales call, the seller must provide the consumer with the street address of the building or office from which the call is being made. Additionally, if the seller tells the consumer that the item is being offered at a reduced price, the seller must provide the name of the manufacturer. Along those same lines, if the seller represents that one of the items is a gift or prize, then they also need to clearly state the contest rules.

The Telephone Solicitation Act also places a significant limitation on exactly what telemarketers are allowed to say during a sales call: the caller is not allowed to state or otherwise reference their supposed compliance with the statute. The idea behind this restriction is that sellers should not be able to discourage consumers from investigating on their own to determine whether a seller violated the law by making a deceptive sales call.

How to File a Civil Lawsuit Against a Telemarketer in Texas

Consumers who are defrauded, scammed, or otherwise injured by a telemarketer’s violation of the Telephone Solicitation Act can take legal action. Experienced Texas consumer fraud lawyers know just how strong the statute’s protections are, and they also know how to navigate the legal system to hold businesses accountable for violating the law.

One option available to consumers is to file a civil suit against the company or person who made the sales call. Any individual who suffered economic losses due to a seller breaching an agreement that was entered into during a telephone solicitation may be eligible to recover financial compensation against the seller’s security deposit with the state. It might also be possible for consumers to bring a claim under the Deceptive Trade Practices Act (DTPA) because a violation of the Telephone Solicitation Act qualifies as a violation of the DTPA. Additionally, a person bringing a civil action under either statute may be entitled to compensation for reasonable attorney’s fees and related legal expenses.

Burden of Proof

The protections set forth in the Texas Telephone Solicitation Act are far-reaching and tend to be interpreted broadly by judges. In fact, the statute even stipulates that the burden of proof in these cases will be on the defendant accused of violating the law. For example, in civil proceedings where the defendant argues that they are exempt from the law, the burden of proving the exemption will fall on the defendant. Similarly, a company or individual who faces criminal charges for violating the telephone solicitation law is required to produce evidence supporting their defense that they are exempt from the statute.

Which Sellers Are Exempt from the Texas Telephone Solicitation Act?

Some sellers accused of violating the Telephone Solicitation Act may be able to argue that the consumer protection law does not apply to them, but only in certain situations. Those who may be exempt from the statute include agents of publicly traded companies, sellers for banks or other supervised financial institutions, anyone associated with companies regulated by the Public Utility Commission of Texas, individuals who are already subject to regulation by the Federal Communications Commission (FCC), and educational institutions or nonprofit organizations that are exempt from taxation by the IRS. In many instances, exemption from the Telephone Solicitation Act is possible because another law or regulation applies instead and takes precedence.

The Texas Business and Commerce Code also includes explicit exemptions from the phone solicitation law for the following categories of sellers:

  • Anyone selling a subscription to a newspaper, magazine, or cable television service.
  • Anyone selling items to a consumer who has consented in advance to receiving periodic deliveries of those items.
  • Individuals or companies delivering catalogs that are distributed in at least one other state and that have a circulation of at least 250,000 customers.
  • Anyone selling items to a business that plans to resell the items.
  • Persons or companies attempting to sell food products.
  • Persons calling about maintenance or repair of an item that was previously purchased from them.
  • Businesses soliciting a former or current customer.

Criminal and Civil Penalties Imposed by the Texas Telephone Solicitation Act

Every individual violation of a provision in the Texas Telephone Solicitation Act is considered a separate offense, which means that the penalties can add up very quickly even when the offenses stem from a single sales call. Beyond that, there can be both civil and criminal penalties imposed against sellers who violate the statute.

Criminal Penalties

Violations that may be charged as criminal offenses include failing to obtain the necessary registration certificate before making a phone solicitation, failing to make necessary disclosures to the consumer before finalizing a sale, and mentioning compliance with the statute on the sales call. Each of these offenses can be charged as a class A misdemeanor, which carries a possible fine of $4,000 and a sentence of up to one year in jail. Moreover, these criminal penalties can be imposed against both the business owner and the salesperson or telemarketer who made the call. Additionally, the defendant in a criminal action may be ordered to pay the costs of prosecuting the case, including the attorney general’s expenses for the investigation, depositions, witnesses, and related attorney’s fees.

Civil Penalties

Sellers who violate a provision in the Texas Telephone Solicitation Act are also subject to civil penalties. These penalties can be substantial, with the statute calling for a fine of up to $5,000 for each violation. The penalties become even harsher when the seller violates an injunction brought by the secretary of state for a previous offense: a $25,000 fine for each subsequent violation, plus an additional $50,000 fine for all violations after the injunction was issued.

Contact the Texas Consumer Protection Lawyers at Tauler Smith LLP

Did you receive a telemarketing call from a person who failed to identify themselves, their business, or their reason for calling? Did the telemarketer’s attempts to sell you something feel like part of a scam? The Texas Telephone Solicitation Act gives consumers the ability to take legal action by notifying the secretary of state and possibly filing a civil suit, and the Texas consumer protection attorneys at Tauler Smith LLP can help you.

Call or email us today to discuss your case.

Invasion of Privacy Claims

Right of Publicity & Invasion of Privacy Claims

Invasion of Privacy Claims

Right of publicity & invasion of privacy claims often intersect and overlap, depending on the circumstances of the particular case. California’s privacy laws apply broadly to everyone. When someone else uses your name, image, voice, or other aspect of your identity without permission, they may be violating your right to privacy. Although celebrities do relinquish some of their privacy rights by virtue of being in the public eye, they do not surrender their publicity rights under either California or federal law. Whether you are a celebrity or a non-celebrity, you have the right to keep others from exploiting your image or likeness for commercial purposes.

To learn more about the differences between right of publicity claims and invasion of privacy claims, keep reading this blog.

Publicity Rights vs. Privacy Rights in California

The right of publicity falls into the category of “intellectual property rights” that are protected by both state and federal law. Rights of publicity are similar to something known as an invasion of privacy claim, which is a legal claim that seeks to prevent anyone from interfering with your private affairs or disclosing personal information about you to others.

There are important differences between publicity rights and privacy rights. For instance, an individual’s publicity rights include their image, photo, name, voice, and likeness, while an individual’s privacy rights typically extend to their name or likeness. Additionally, publicity rights are usually limited to uses that involve advertisements or sales from which the defendant derives a commercial benefit.

Statute of Limitations

There is also an extended statutory time period for right of publicity claims in California, with plaintiffs having a post-mortem right under Cal. Civ. Code Section 3344.1 to bring a claim on behalf of a deceased person’s likeness for another 70 years after their death.

Damages

While the damages in a right of publicity case necessarily concern commercial losses suffered by the plaintiff when their likeness is used without authorization, the right of privacy typically concerns emotional distress suffered by the plaintiff when their private affairs or information are shared without permission.

Defamation Claims and the Right of Publicity

A related law that is often cited in these cases is the law against defamation, which prohibits anyone from making disparaging or otherwise defamatory statements about you in certain circumstances.

Defamation claims differ from right of publicity claims primarily when it comes to the truthfulness of the information that is disclosed to the public. When the information about the plaintiff is true, the appropriate legal action is probably a lawsuit for right of publicity misappropriation since the defendant is essentially stealing the plaintiff’s identity. By contrast, when the information about the plaintiff is false, then a claim for defamation of character may be appropriate since the defendant is possibly causing harm by lying about the plaintiff.

California Right of Publicity Claims

What about more traditional right of publicity claims that don’t involve privacy rights? A right of publicity gives you legal control over how certain personal aspects are used by others to promote their goods or services. These aspects that qualify for protection under the law include your name, image, voice, and likeness.

California’s publicity rights law recognizes the inherent commercial value in the average person’s likeness. Once that value has been exploited for a financial benefit, then the person to whom it belongs may have a cause of action to take legal action when someone infringes on their likeness. This means that the plaintiff in a California right of publicity lawsuit needs to establish that they have attempted to benefit financially from their likeness at some point before the defendant tried to do the same.

Contact an Experienced Los Angeles Right of Publicity Lawyer

In an invasion of privacy case that involves the right of publicity, you are going to want to be represented by a lawyer who has a firm grasp of both intellectual property law and internet law. The Los Angeles intellectual property attorneys at Tauler Smith LLP have extensive experience litigating cases involving right of publicity law, privacy law, and trademark claims. We can help you decide the most appropriate next step in your case.

Call us at 310-590-3927 or email us today.

Pet Right of Publicity Claims

Do Pets Have a Right of Publicity in California?

Pet Right of Publicity Claims

Is there a right of publicity for animals? More specifically, do pets have a right of publicity in California? These may seem like silly questions at first glance, but the answers could be very important if you have a pet with a social media presence. These days, it is not uncommon for people to create social media accounts on Instagram, Facebook, Twitter, or Pinterest where they post daily photos of their pets. These accounts can be incredibly popular and often gain hundreds or even thousands of followers. Depending on the circumstances, it may be possible to monetize the accounts through online advertisements, merchandising agreements, and/or licensing deals. This is where the right of publicity would theoretically apply to the pet whose photographs, videos, and other images are posted on the internet.

To learn whether you can file a California right of publicity claim for misappropriation of your pet’s image, keep reading this blog.

California Right of Publicity Claims for Pets

There has yet to be an instance of a California court ruling that pets have a right of publicity under the law. This could leave you exposed to misappropriation of your pet’s identity by others who wish to take your photos and use them for their own commercial purposes.

The good news is that there are still ways to protect your rights in these situations. For example, you may be able to obtain copyright protection for photographs of your pet. Additionally, you may consider trademarking your pet’s name if that name is unique. (E.g., Davey the Dog.) With copyright or trademark protection, you would potentially have the option to file a lawsuit for intellectual property infringement if anyone ever used your pet’s image without authorization.

Statutory Protections for an Individual’s Right of Publicity in California

Of course, California’s right of publicity law does apply to humans. Statutory protections for the right of publicity are set forth in the Celebrities Rights Act, which can be found in California Civil Code Section 3344. The law protects individuals against the infringement of their publicity rights, which means that no one can use another person’s identity for commercial purposes unless the IP holder consents to it.

The statute explicitly protects five (5) aspects of your identity against unlawful commercial exploitation:

  1. Name
  2. Photograph or Image
  3. Likeness
  4. Voice
  5. Signature

An experienced right of publicity lawyer can make sure that your image, name, and voice are protected against unlawful use by others. This is extremely important because these aspects of your identity may have significant monetary value. When someone takes your likeness without permission, they are also taking away your ability to receive recognition and compensation that you are entitled to. Worse yet, if someone uses your likeness in the wrong context (e.g., an advertisement for a product or service with a bad public image), it could adversely affect your ability to earn money in the future.

Common Law Right of Publicity Claims

California recognizes both a statutory right of publicity and a common law right of publicity. This means that plaintiffs have options when deciding to file a lawsuit for right of publicity misappropriation.

California’s statutory protections for the right of publicity are limited to a person’s name, signature, voice, photograph, and likeness. This means that when a plaintiff wants to bring a right of publicity lawsuit for misappropriation of some other aspect of their identity, they will need to do so through a common law right of publicity claim. The good news for plaintiffs is that courts in these cases often use a broad definition of the right of publicity so that it includes things that go well beyond a literal photo of the plaintiff. For example, courts have found that the use of a voice that is meant to imitate a celebrity’s voice may constitute an unlawful misappropriation.

California’s Publicity Rights Law Protects Both Celebrities & Non-Celebrities

Although the right of publicity was once thought to be limited to celebrities and their heirs, this has changed in recent years as social media and reality television have exploded to give many more people an interest in their public image. These days, anyone with a Twitter or Instagram account may be considered a “social media influencer” who is able to monetize their persona and generate substantial income through online advertising. This makes it important for these individuals to protect their right of publicity when someone misappropriates it. The good news is that California’s right of publicity law has strong protections for both celebrities and non-celebrities.

Free Consultation with Los Angeles Right of Publicity Lawyers

If someone has used a photo of your dog, cat, or other pet without permission, they may have violated your legal rights. The same is true if someone has used your likeness in an advertisement without first obtaining your consent. Your next step should be to speak with a Los Angeles right of publicity attorney. The lawyers at Tauler Smith LLP understand this area of the law because we regularly represent clients in both state and federal courts on matters involving intellectual property.

Call our legal team today at 310-590-3927 or email us to schedule a consultation.

Right of Publicity Defenses

Best Defenses to Right of Publicity Claims

Right of Publicity Defenses

If a company uses a person’s photo, voice, or likeness and includes it in their own advertisement without first obtaining consent, they may be violating the person’s right of publicity. In California, there are laws against misappropriating someone’s publicity rights. Unfortunately, not all right of publicity lawsuits are brought in good faith, which is why anyone who has been threatened with this type of litigation should be aware of the best defenses to right of publicity claims. Sometimes, an individual threatens to file a right of publicity complaint simply as a way of pressuring the defendant to pay a quick cash settlement. If this happens to you, it is very important that you speak with a knowledgeable attorney who can honestly assess the situation and help you contest the claim.

What are the best defenses that can be raised in response to a right of publicity claim in California? Keep reading this blog to find out.

What Is California’s Publicity Rights Law?

Some states limit the right of publicity to celebrities, but California has a much more expansive law around this intellectual property right. Any person who knowingly uses someone else’s identity in any manner for products, services, or advertising must have prior consent to do so. The right of publicity usually applies to recognizable aspects of an individual’s identity, such as their image or likeness, their name, their voice, and even a persona that has been created. The statute, California Civil Code section 3344, also stipulates that the person who is injured as a result of the unauthorized use of their image may bring a civil suit for damages.

In order to prevail at trial in a statutory right of publicity lawsuit, the plaintiff must establish all of the following:

  1. The defendant knowingly used the plaintiff’s identity.
  2. The defendant’s use of the plaintiff’s identity was for a commercial purpose.
  3. The plaintiff did not consent to the defendant’s use of their likeness.

What Are the Strongest Defenses to a Right of Publicity Claim in California?

The good news is that the law does give defendants several potential defenses against a right of publicity claim, including the following:

  • Freedom of Speech: The use of the plaintiff’s image was protected by the First Amendment.
  • Newsworthiness: The use of the plaintiff’s image is allowed because there is a public interest in publication.
  • No Misappropriation: There was no misappropriation because the plaintiff’s image was not actually used.
  • Group Photo: There was no misappropriation because the plaintiff’s image was part of a group photo.
  • Plaintiff’s Consent: The defendant had the plaintiff’s consent to use their image.
  • Accidental Misappropriation: The defendant’s misappropriation of the plaintiff’s image was unintentional.

“Freedom of Speech” Defense

One of the strongest defenses available in some right of publicity cases is a First Amendment freedom of speech defense. For example, you may have used the plaintiff’s likeness in a way that added something new and changed the message that would otherwise be conveyed by the likeness. This is known as the “transformative test” because it allows for transformative use of celebrity images, such as parodies that could not possibly be confused with a more straightforward celebrity product endorsement. The idea here is that by incorporating other elements into the image, it becomes a new kind of creative work or artistic expression that qualifies as protected speech under the First Amendment.

There are often First Amendment concerns implicated by a right of publicity lawsuit. This is why you need to be represented a knowledgeable intellectual property attorney who understands the nuances of the law.

“Newsworthiness” or Public Interest Defense

A related defense available in some right of publicity cases is newsworthiness, which is another way of saying that a particular use of the plaintiff’s likeness or persona is valuable to the public because it is of legitimate public concern. Here, the court is likely to balance the right of the plaintiff to maintain some control over the use of their likeness against the public’s right to be informed about important matters. This is known as the public interest defense. Additionally, courts often find that just about any event involving a celebrity is worthy of news coverage. So, the key question in these right of publicity cases will be whether the defendant was truly engaged in journalism, or whether they were using the plaintiff’s image to market or sell something.

No Misappropriation

In some right of publicity cases, it is not immediately obvious that the plaintiff’s likeness is being used at all. For instance, a book might disguise the identity of the plaintiff by using a different name. This does not necessarily mean that the claim will be dismissed, however, since the plaintiff may still be able to show that the book’s content makes it clear that the character is, in fact, the plaintiff.

Group Photo

In California, defendants in a right of publicity case may be able to raise a defense that they did not violate state law by using the plaintiff’s image when it was part of a group photo. But there is an exception to the group photo defense if the plaintiff’s image was singled out from the rest of the crowd in the photograph.

Plaintiff’s Consent

Another defense that might be available in a right of publicity case is that the defendant had the plaintiff’s consent to use their name, image, or likeness for commercial purposes. Many times, this consent comes in the form of a licensing agreement between the parties. Even in cases where the defendant did misappropriate the plaintiff’s identity, it might be possible for the parties to avoid costly litigation by entering into a licensing deal after the fact.

Accidental Misappropriation

In a statutory right of publicity claim, the defendant can potentially avoid liability by showing that their misappropriation of the plaintiff’s identity was accidental. That’s because the Celebrities Rights Act, codified in California Civil Code section 3344, requires the plaintiff to prove that the defendant “knowingly used” the defendant’s identity without consent. (Note: This defense is only available to defendants in statutory right of publicity claims. For a common law right of publicity claim, the plaintiff does not need to show that the use of their identity was knowing or intentional.)

Recovering Attorney’s Fees in a California Right of Publicity Case

The defendant in a right of publicity case may be able to recover their attorney’s fees if they prevail on a claim that their use of the plaintiff’s identity constituted protected speech. This is because California has what is known as an anti-SLAPP law. SLAPP stands for “Strategic Lawsuit Against Public Participation,” and it refers to lawsuits that were brought for the purpose of discouraging criticism and chilling speech that is otherwise protected by the First Amendment. When the defendant wins a right of publicity case with an anti-SLAPP motion, the law gives the court the option to award reasonable attorney’s fees to the defendant.

Contact the Los Angeles Right of Publicity Lawyers at Tauler Smith LLP

If you have been accused of violating someone’s right of publicity in California, it is imperative that you act quickly and speak with an experienced Los Angeles right of publicity lawyer immediately. The attorneys at Tauler Smith LLP routinely represent both plaintiffs and defendants in intellectual property cases, so we are often able to anticipate the arguments that the opposing side will make in court and help our clients win the case.

Call us at 310-590-3927 or send an email to schedule a free initial consultation.

California Right of Publicity Damages

Damages Available in Right of Publicity Claims

California Right of Publicity Damages

You may have worked very hard on your public image, especially if you use that image to generate revenues through a brand or persona that you publicize online. When someone takes your carefully cultivated image without permission, they are stealing your hard work to make money for themselves. Moreover, their actions could be causing significant harm to your image by associating it with a product or service that you do not want to be associated with. The good news is that California law provides you with legal options in these situations, and there are powerful remedies and substantial damages available in right of publicity cases. Additionally, when the plaintiff is successful at trial, the court may also order the defendant to pay attorney’s fees and legal expenses for both sides.

To learn about your options for pursuing damages with a California right of publicity claim, keep reading this blog.

Statutory Damages Available to Plaintiffs in California Right of Publicity Cases

The right of publicity is explicitly protected by the Celebrities Rights Act, and damages for right of publicity violations are set forth in California Civil Code Sec. 3344(a). The law states that any person who misappropriates someone else’s right of publicity “shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages.” The statute also allows for the awarding of punitive or exemplary damages to the party whose right of publicity was violated when the defendant engaged in oppression, fraud, or malice.

The statutory damages in a right of publicity claim can add up very quickly because the plaintiff can sue for each unlawful use of their likeness or persona. Another very important factor when determining damages in a right of publicity case is the total amount of money that the defendant earned or profited from use of the plaintiff’s likeness.

Determining Actual Damages in a California Right of Publicity Claim

It is not always easy to establish an exact amount for actual damages in a right of publicity claim because the value of a person’s name or likeness isn’t obviously quantifiable. This is one way in which right of publicity differs from other intellectual property rights like copyright, trademark, or patent, which commonly involve commercial products or services and reportable revenues.

Some factors that the court may consider when determining damages in a right of publicity lawsuit include the following:

  • The plaintiff’s level of fame.
  • How much money the plaintiff has earned from their likeness in the past.
  • Previous contracts and licenses that include royalties.
  • Whether the plaintiff’s publicity rights have already been licensed. (Unlicensed rights might have more value.)
  • How much money the defendant made from their use of the plaintiff’s likeness.

Punitive Damages in Right of Publicity Cases

The punitive damages question comes after the court has already decided that the defendant misappropriated the plaintiff’s publicity rights. At this point in the case, the court is now left to determine exactly how much money to award the plaintiff. The key issue for the court is whether the defendant committed malice, oppression, or fraud. California law defines these terms as follows:

  • Malice: There are two (2) ways that a defendant can be found to have acted with malice. The first definition of “malice” is any conduct which the defendant intended to cause injury to the plaintiff. The second definition is any despicable conduct which the defendant engaged in with conscious disregard of the rights or safety of other people.
  • Oppression: The statute defines “oppression” as despicable conduct that consciously disregards another person’s rights and that causes cruel and unjust hardship for that person.
  • Fraud: An individual commits fraud when they use an intentional misrepresentation, deceit, or concealment of a material fact for the purpose of depriving someone else of property or legal rights, or for the purpose of causing injury.

The basis for punitive damages awards in publicity law cases actually comes from another statute: California Civil Code 3294. That law stipulates that in any case not involving a contract breach, the plaintiff may be eligible for punitive damages in addition to actual damages. Cal. Civ. Code 3294(a) states that when the defendant has been guilty of oppression, fraud, or malice, the plaintiff “may recover damages for the sake of example and by way of punishing the defendant.” The idea behind punitive damages is that the defendant’s conduct has been so egregious that they deserve to be punished in some way that goes beyond the actual injury or harm caused. Moreover, punitive damages awards have a deterrent effect in that they serve as a reminder to other people that they should not violate the law in the future.

Exception to Punitive Damages

There are strong defenses that can be raised in right of publicity cases, including an exception for punitive damages that may be available to some employers. That’s because Cal. Civ. Code Sec. 3294(b) stipulates that when a right of publicity misappropriation was committed by an employee of the defendant, the defendant-employer will not be liable unless the plaintiff can show that the employer had certain advance knowledge. For instance, the plaintiff must prove to the satisfaction of the court that the employer knew that the employee who would later go on to violate the plaintiff’s right of publicity was, in fact, unfit for the position. For corporate employers, the plaintiff must show that the advance knowledge was possessed by an officer, director, or managing agent of the corporation. Additionally, an employer can still be liable for punitive damages if they were personally guilty of oppression, fraud, or malice, as those terms are defined in the statute.

Other Remedies Available in Right of Publicity Claims

Plaintiffs with possible right of publicity claims may also be able to pursue remedies through different statutes. California Civil Code Section 3344(g) explicitly states that these remedies are cumulative “and shall be in addition to any others provided for by law.” This opens the door for plaintiffs to bring other civil suits in addition to the right of publicity lawsuit.

Additionally, one important consideration for plaintiffs in a right of publicity case is whether the defendant has insurance coverage. That’s because a lot of publicity rights claims involve defendants with insurance companies that will ultimately pay out any settlement or damages award issued by the court.

Contact the Los Angeles Right of Publicity Attorneys at Tauler Smith LLP

Your identity could have significant monetary value in the internet era, especially if you are an influencer on social media platforms like Instagram, Facebook, Twitter, Pinterest, YouTube, or Vimeo. You never know when your image or likeness might be sought for online advertisements. If someone has used your identity without permission, the experienced Los Angeles right of publicity lawyers at Tauler Smith LLP can help you take legal action.

Call 310-590-3927 or email us to schedule a free consultation.

NY Automatic Renewal Law

New York’s Automatic Renewal Law

NY Automatic Renewal Law

New York’s Automatic Renewal Law (ARL) protects consumers by prohibiting businesses from engaging in certain practices when making an automatic renewal offer in the state. The New York ARL tracks California’s strict statutory requirements, which means that businesses must follow guidelines about disclosing renewal offer terms to consumers, giving customers the opportunity to affirmatively consent before they sign up for an auto-renewal program, and allowing customers to easily cancel their subscription afterwards. NY consumers who have enrolled in a subscription program without their consent should immediately reach out to a qualified New York false advertising attorney who understands both state and federal laws on auto-renewal offers.

To learn more about the New York automatic renewal law, keep reading this blog.

NY Automatic Renewal Bill: SB 1475

New York’s Automatic Renewal Law (ARL) is set forth in New York State Senate Bill S1475A. The law went into effect in February 2021 after being passed by the New York State Legislature and signed by NY Governor Andrew Cuomo. SB 1475 greatly expanded the scope of the state’s previous automatic renewal law, New York General Obligations Law § 5-903. The new ARL added substantial requirements for businesses that offer either automatic renewal plans or continuous service plans to consumers, including a stricter requirement that businesses notify consumers of the subscription terms after enrollment. Additionally, SB 1475 expanded the old law’s scope beyond service, maintenance, and repair contracts to also include consumer contracts involving “any goods, services, money, or credit for personal, family, or household purposes.”

New York businesses that offer auto-renewal subscription services to consumers must comply with SB 1475, relevant federal laws, and any other state ARLs which may be applicable if the purchase was made online by an out-of-state customer. Additionally, these businesses must also comply with New York’s older ARL, which remains in effect even after the passage of the new law.

New York ARL Requirements for Businesses

The New York ARL imposes the following requirements on businesses that offer consumer contracts for automatically renewing subscription services:

  • Auto-renewal terms must be conspicuous. The auto-renewal terms should be in visual proximity to the section where the consumer provides affirmative consent, and the terms should also stand out visually from the rest of the offer. (E.g., different text sizes, different fonts, and different colors.)
  • Auto-renewal terms must be clear. The terms and conditions of the subscription service must be easy for the consumer to understand. The exact language used by the NY ARL is that the offer terms should be presented “in a manner capable of being retained by the consumer.” (E.g., the offer should clearly state that the subscription will continue until the purchaser cancels.)
  • Must obtain affirmative consent from purchaser. The customer needs to affirmatively consent to the automatic renewal terms before it becomes a legally binding contract. Otherwise, NY law stipulates that any goods received by the consumer are an “unconditional gift” and do not need to be paid for.
  • Must send enrollment acknowledgement to consumer. After the customer has enrolled in the subscription program, the business needs to send a letter, email, or other type of written acknowledgement that states the program’s terms and cancelation policy.
  • Cancelation policy must match method used to subscribe. When a customer uses a company’s website to enroll in a subscription program, the company must allow the customer to cancel online.
  • Free trial offers must have cancelation options. If the company offers a “free” trial period before the subscription automatically renews for a monthly fee, the company needs to provide the consumer with the ability to opt out of the paid subscription service. Additionally, the cancelation policy must be presented clearly and conspicuously in the original agreement.
  • Must disclose any material changes to the agreement. It is common for businesses to modify their agreements later. But if a business wants to change the terms of an auto-renewal plan, they must have already alerted the consumer to this possibility in the original offer. Moreover, when making material changes to its subscription plan, the business must disclose those changes to the consumer and give the consumer an easy way to cancel their subscription.

Defenses Available to Businesses Accused of Violating the NY ARL

Although New York’s ARL provides strong protections to consumers who enroll in auto-renewal plans, there are some exceptions to the law that allow businesses to raise possible defenses against an alleged violation. For instance, the new ARL only applies to contracts for subscriptions involving consumers; business-to-business contract are addressed by the state’s old ARL.

SB 1475 also has a “safe harbor” provision that gives companies a possible defense when the violation was unintentional. If the company can show that they made a bona fide error despite taking reasonable measures to comply with the law, the New York Attorney General may choose not to bring charges.

What Remedies Are Available to Consumers in NY ARL Cases?

Compliance with the New York ARL is enforced by the NY Attorney General. The statute gives the state Attorney General authority to fine businesses as much as $100 for each violation of the auto-renewal law. When the violation was knowing and intentional, the fine can be increased to $500 for each violation. For companies with popular services and large subscription bases, these fines can add up quickly and serve as an effective deterrent against further abuse.

The individual consumers who enrolled in the unlawful subscription services also stand to benefit financially under New York’s auto-renewal law. That’s because the statute specifies that consumers who receive a service or product without providing affirmative consent for enrollment in the subscription program will not have to pay for the goods or services received. Additionally, they may be eligible to join a consumer class action lawsuit brought under one of the state’s consumer protection laws.

Contact the New York False Advertising Lawyers at Tauler Smith LLP

Tauler Smith LLP is a law firm that represents clients in consumer fraud litigation throughout the United States, including New York. Our experienced NY false advertising lawyers have filed complaints on behalf of clients in both federal and state court, and we know how to win these cases. Call or email us to speak with a member of our litigation team.

California Automatic Renewal Law

California’s Automatic Renewal Law

California Automatic Renewal LawThe explosion of the internet and e-commerce has led many businesses to offer their products and services through online subscription services. This has made it easier for consumers to quickly make purchases from their phone or computer, and it has also made it easier for companies to lock customers into subscriptions that renew automatically. These auto-renewal plans become problematic when companies use them to take advantage of customers who might not realize what they are signing up for. California’s Automatic Renewal Law (ARL) was a direct response to this problem, with state lawmakers codifying strong protections for consumers in these situations. The California ARL specifically requires businesses disclose all relevant subscription terms to customers, get consent from the customers before charging their credit cards, and provide customers with a way to easily cancel the contract.

To learn more about the California automatic renewal law, keep reading.

What Requirements Does California’s ARL Impose on Businesses?

Automatic renewal subscriptions affecting California consumers are governed by the state’s Automatic Renewal Law (ARL), which is set forth in Cal. Bus. & Prof. Code §§ 17600. The California ARL requires companies to clearly and conspicuously explain “automatic renewal offer terms.” State legislators passed the law for the purpose of stopping companies from continually charging consumer credit or debit cards without the consumers’ explicit consent for ongoing shipments of products or ongoing provision of services.

When a business violates the ARL by failing to properly disclose information about an auto-renewal offer, it may be possible for the customer to file a consumer fraud lawsuit and seek financial compensation from the business. If you have been billed for an automatically renewing subscription that you did not want to be enrolled in, your first step should be to speak with a California false advertising lawyer.

What Information Must Be Disclosed in California Auto-Renewal Offers?

California’s Automatic Renewal Law (ARL) is among the most consumer-friendly in the entire country, with other states modeling their own ARLs after it.

The California ARL requires companies to disclose the following information before a customer enrolls in an automatic subscription program:

  1. That the subscription will continue until the consumer cancels.
  2. A description of the policy for canceling the subscription.
  3. Any recurring charges that will be charged to the consumer’s credit card, debit card, or bank account as part of the automatic renewal plan, as well as whether the amount of the charge may change and how often the consumer will be billed.
  4. The length of the automatic renewal term. (If the service is continuous, this must also be disclosed.)
  5. Any minimum purchase obligation.

“Clear and Conspicuous” Disclosures Required Under California’s ARL

Importantly, section 17602 of the California ARL requires that the automatic renewal offer terms must be presented to the consumer both before the purchasing contract is fulfilled and after enrollment in the form of an email or other post-sale acknowledgement. There can be no concealing of the auto-renewal offer at any point in the process. Moreover, there can be no attempts by the company to thwart or frustrate a customer’s attempts to cancel the subscription. That’s because the ARL explicitly requires businesses to provide a “cost-effective, timely, and easy-to-use mechanism for cancelation.”

Additionally, those disclosures must be plainly visible and obvious to the customer. In fact, there are strict guidelines for the manner in which the information is presented. For example, the terms of the automatic subscription service must be in “visual proximity” to the request for consent to the offer. Those terms must also be presented “clearly and conspicuously” so that they can be distinguished from the rest of the offer. This means that the text of the auto-renewal offer should be:

  • In larger type than the surrounding text.
  • In contrasting type, font, or color to the surrounding text of the same size.
  • Set off from the surrounding text of the same size by symbols or other marks in a manner that clearly calls attention to the language.

Remedies Available Under California’s Auto-Renewal Law

What happens when a company violates the California automatic renewal law (ARL) by failing to clearly and conspicuously disclose the terms and conditions of a subscription service? The answer to this question depends on the facts and circumstances of your particular case, which is why it’s important for you to speak with a Los Angeles false advertising attorney who has knowledge of both state and federal automatic renewal laws, as well as other applicable California consumer protection laws. An experienced attorney may be able to force the company to stop its misleading sale and advertisement of services, in addition to helping you get full restitution of any expenses you’ve already incurred. In some cases, you may also be entitled to additional financial compensation for your losses or harm suffered.

Call the Los Angeles False Advertising Lawyers at Tauler Smith LLP

Tauler Smith LLP is a Los Angeles law firm that focuses on consumer fraud litigation, including violations of the California Automatic Renewal Law (ARL). Our false advertising lawyers represent plaintiffs in lawsuits filed against companies that misrepresent or fail to disclose the terms of their monthly subscription contracts. Call 310-590-3927 or email us to schedule a free consultation.

Macy’s Beauty Box Lawsuit

Macy’s Faces Lawsuit for Beauty Box Automatic Subscription

Macy’s Beauty Box Lawsuit

High-end department store Macy’s faces a lawsuit for its Beauty Box automatic subscription service. The company has been accused of violating consumer protection laws by using deceptive practices to enroll customers in an auto-renewal program for one of its popular beauty product services. Law firm Tauler Smith LLP believes that many people have probably fallen victim to Macy’s allegedly unlawful subscription practices. Since a lot of states like New York, California, and others have strict laws regulating automatic renewals, anyone who purchased the Macy’s Beauty Box from the Macys.com website may be able to file a lawsuit for financial compensation.

Tauler Smith LLP is looking to certify a class of plaintiffs nationwide for a class action lawsuit against Macy’s. If you purchased the Macy’s Beauty Box and were later charged for an ongoing subscription to which you did not consent, you should contact one of our lawyers immediately.

Macy’s Accused of Consumer Fraud

Macy’s Beauty Box is a monthly subscription package of deluxe beauty samples and beauty-related products that has attracted many customers. Unfortunately, the Beauty Box program’s terms and conditions are not always made clear to customers, which has exposed Macy’s to being named as a defendant in lawsuits in California, New York, and other states with strong consumer protection laws. For instance, the automatic renewal terms of Macy’s Beauty Box subscription program may be a violation of both the California Consumers Legal Remedies Act (CLRA) and the California Automatic Renewal Law (ARL). Specifically, Macy’s is enrolling customers into an automatic renewal subscription without providing the clear and conspicuous disclosures required by California law.

Some consumers may be unaware that they are being enrolled in an auto-renewal program when purchasing the Macy’s Beauty Box from the store’s website. For example, at least one customer has complained that she did not notice a second charge appearing on her credit card more than one month after her initial purchase. In fact, the entire checkout process on Macys.com appears to be designed to conceal the nature of the automatically renewing subscription and recurring charges. This could make it a clear violation of state consumer fraud laws, including automatic renewal laws.

Does Macy’s Beauty Box Subscription Service Violate Auto-Renewal Laws?

Macy’s, Inc. has been accused of committing numerous violations of automatic renewal laws, including the following:

  • Failure to clearly and conspicuously disclose auto-renewal terms.
  • Failure to disclose when and how often customers will be automatically billed.
  • Failure to inform customers of cancelation policy.
  • Making it difficult for customers to cancel subscription.
  • Failure to send email or other notification to customers after enrollment.

Clear & Conspicuous Disclosure

Macy’s has been accused of failing to clearly and conspicuously disclose its automatic renewal terms to customers who purchase the Macy’s Beauty Box on the store’s website. Although online customers check a box to indicate consent to be enrolled into a monthly subscription service, this box is not clear and conspicuous in the manner required by California’s ARL. For example, Macy’s does not present the auto-renewal offer terms in a larger type font than the surrounding text, nor is the text in the box distinguishable from the surrounding text via contrasting type, font, or color.

One way that Macy’s could have more clearly called attention to the automatic subscription language is by using bold, highlighted, all-capitalized, or different-colored text for the automatic renewal terms. Macy’s also could have employed a “call out” box near the terms so that the subscription enrollment contract was distinct from the product purchase agreement.

Timing of Automatic Charges

Macy’s does not adequately disclose the timing of the automatic charges. For example, the store represents that its customers will be automatically charged “monthly,” but the actual charges to consumers appear to occur in arbitrary intervals. For example, at least one customer was charged on her credit card 49 days after the initial charge.

Cancelation Policy

Macy’s does not adequately disclose how a customer can cancel their subscription. This information could be disclosed either directly on the Macy’s website or in an email sent to the customer after enrollment in the subscription service.

Frustrating Attempts to Cancel Subscription

Macy’s has failed to make it easy for a customer to cancel the subscription. In fact, it appears that Macy’s has intentionally made the cancelation process difficult and frustrating in the hopes that customers will abandon trying to cancel their subscriptions.

Email Acknowledgement After Enrollment

Macy’s fails to send an ARL-compliant retainable acknowledgement consistent with state consumer protection laws. When a customer enrolls in the Beauty Box subscription program, they do not receive an email from Macy’s that accurately explains the terms and conditions of the service. The absence of an email also means that customers are not informed of the policy for canceling the subscription. By failing to provide a permanently retainable post-transaction acknowledgement that allows for cancelation before payment, Macy’s is effectively concealing the nature of the agreement and violating state automatic renewal laws meant to protect consumers.

Macy’s Accused of Violating California’s Consumers Legal Remedies Act (CLRA)

In addition to possibly violating state automatic renewal laws, Macy’s has also been accused of violating broader consumer protection laws, such as the California Consumers Legal Remedies Act (CLRA). In California, a violation of the ARL can form the basis for a CLRA claim, as well as a claim under California’s Unfair Competition Law. One of the unlawful business practices that Macy’s has been accused of is failing to include a clear and conspicuous explanation of the price that will be charged for its Beauty Box subscription service. Another more general accusation against Macy’s is that the company fails to first obtain affirmative consent from customers before charging their credit and debit cards. All of these practices constitute violations of the ARL, which means that affected consumers may also be able to file lawsuits under the CLRA and other statutes.

Tauler Smith LLP Pursuing Class Action Lawsuit Against Macy’s for ARL Violations

Tauler Smith LLP is a law firm that represents consumers in false advertising claims in California, New York, and nationwide. We suspect that thousands of consumers may have been illegally enrolled in Macy’s Beauty Box subscription program. Our consumer protection lawyers are actively seeking plaintiffs for a possible class action lawsuit against Macy’s. The lawsuit seeks the following remedies on behalf of affected consumers:

  • Full financial restitution to all purchasers throughout the United States of all purchase money obtained from the sales of Macy’s services and products that violate automatic renewal laws.
  • Monetary compensation for any damages suffered by consumers because of Macy’s unlawful business practices.
  • Punitive damages for knowing and egregious violations.
  • An injunction ordering Macy’s to cease and desist from the continued misleading sale and advertisement of its Beauty Box services.
  • A corrective advertising campaign by Macy’s to inform consumers about the true price of any services they purchase, including any automatically renewing charges in connection with those services.
  • Payment by Macy’s of all reasonable attorney’s fees and court costs related to the lawsuit.
  • Additions to the Macy’s website that include a clear and conspicuous explanation of the amount customers will be charged for the Macy’s Beauty Box subscription service.
  • The inclusion of a mechanism for obtaining customers’ affirmative consent before Macy’s charges their credit and debit cards.
  • An email or other post-transaction acknowledgement sent by Macy’s to customers that will allow for cancelation of the subscription service before the first payment.

Did You Purchase the Macy’s Beauty Box? Contact the False Advertising Lawyers at Tauler Smith LLP

Were you enrolled in a monthly subscription service after purchasing the Macy’s Beauty Box, or any other product, from the Macys.com website? The false advertising attorneys at Tauler Smith LLP represent plaintiffs in pre-trial settlement negotiations and at trial, and we have helped countless clients achieve successful outcomes that include restitution and financial compensation. We are looking for plaintiffs nationwide in a possible class action lawsuit against Macy’s.

Call or email us to discuss your eligibility to join the lawsuit.

Trade Secret Defenses

Best Defenses to Trade Secret Claims

Trade Secret Defenses

California and federal trade secret laws are supposed to protect businesses against the unlawful acquisition, use, or disclosure of their proprietary information. But these legal protections can also open the door for the filing of bad faith claims by business owners who may have a grudge against a former employee or a competing company. If you are being sued for trade secret misappropriation, it is important that you speak with an attorney who understands both state and federal intellectual property law and who can advise you on the best defenses to trade secret claims.

To learn about the best defenses that may be available in your California trade secret case, keep reading.

What Defenses Are Available in California Trade Secret Cases?

One of the main ideas behind trade secret laws is that businesses should have a way to prevent others from disclosing and/or using their confidential information. In fact, these laws are so robust and plaintiff-friendly that plaintiffs are often able to win and collect substantial monetary damages. This is one reason why any defendant in a trade secret action should be represented by an experienced California trade secret lawyer who can raise strong defenses on their behalf.

These are just a few of the possible defenses in a California trade secret case:

  1. The information was not a “trade secret.”
  2. The information was not misappropriated.
  3. The defendant had whistleblower immunity.
  4. The statute of limitations expired.

The Information Was Not a “Trade Secret”

The federal Defend Trade Secrets Act (DTSA) defines a trade secret as information that is valuable because it cannot be readily ascertained through proper means. A potential defense available in federal trade secret claims filed under the DTSA is that the information was “readily ascertainable” through lawful means. For example, the defendant may be able to show that they acquired the data in material that was published online or in books. This would mean that the information was not confidential since it was, by definition, generally available to others. This exact defense is not available in claims filed under the California trade secrets statute because the California Uniform Trade Secrets Act (CUTSA) defines a trade secret more broadly. But it is still possible for a defendant in a CUTSA action to argue that the information does not qualify as a trade secret because it was “generally known to the public.”

A related defense that may be an option in some California trade secret cases is that the plaintiff failed to take sufficient steps to protect their proprietary information. Both the DTSA and the CUTSA require plaintiffs to make reasonable efforts to ensure that their information remains confidential. When the business owner fails to do at least the bare minimum to maintain the secrecy of the information (e.g., imposing restrictions on which employees can potentially access it), then it may not qualify as a “trade secret” under the law.

The Information Was Not Misappropriated

Even if the plaintiff establishes that the information at issue in the case qualifies as a trade secret, the defendant may be able to argue that there was no misappropriation because the information was lawfully acquired. Under both the California Uniform Trade Secrets Act (CUTSA) and the federal Defend Trade Secrets Act (DTSA), a person or entity is liable for trade secret misappropriation only if the information was acquired through “improper means.” This typically means actions such as theft, espionage, misrepresentation, bribery, or breach of a duty to maintain the secrecy of the information. By contrast, a good example of a lawful action to acquire trade secrets is reverse engineering of a formula or recipe by a rival company. Since this information would have been discovered through publicly available means, it does not violate trade secret law.

The Defendant Had Whistleblower Immunity

When Congress passed the Defend Trade Secrets Act (DTSA), they included provisions that explicitly protect individuals who reveal trade secrets in certain situations. For example, a whistleblower who discloses confidential information to a government official while reporting illegal activity by their employer would be immune from prosecution and from civil liability in a trade secret lawsuit. The same is true for a whistleblower who discloses proprietary information to an attorney in the context of reporting unlawful actions by their employer.

The Statute of Limitations Expired

Defendants in some trade secret cases may be able to raise a defense that the statute of limitations for filing a trade secret claim has expired. In California trade secret actions, the plaintiff has just three (3) years to bring a lawsuit, and the clock starts as soon as the plaintiff has either actual notice of the misappropriation or constructive notice of the misappropriation. (“Constructive notice” means that the plaintiff had reason to investigate and should have discovered the trade secret theft or use.)

Contact the Los Angeles Trade Secret Litigation Attorneys at Tauler Smith LLP

If you have been accused of misappropriating a company’s trade secrets by disclosing information to a competitor or using information without permission, you are going to want a skilled attorney assisting you. The Los Angeles trade secret attorneys at Tauler Smith LLP have extensive experience representing defendants in California trade secret lawsuits, and we are prepared to help you raise strong defenses to win at trial or get the claim dismissed before trial.

Call us at 310-590-3927 or email us to schedule a free consultation.

Trade Secret Definition

What Is a Trade Secret?

Trade Secret Definition

It is vital for any business owner to know the answer to this question: “What is a trade secret?” Sometimes, a company’s intellectual property assets are valuable precisely because information about those assets is not generally known to the public. These are considered “trade secrets,” and both California and federal law afford businesses with legal protections for their trade secrets. These laws recognize that when a company loses its proprietary information due to theft or infringement, the results can be disastrous. The company may see its advantage over competitors in the marketplace disappear, leading to critical revenue losses. Worse yet, the company may lose its core technologies that help the business to survive. An experienced California intellectual property lawyer can protect you against this fate and help you take appropriate legal action in state or federal court.

To learn more about how trade secrets are defined under California law, keep reading.

How Does California Law Define a “Trade Secret”?

A trade secret has three main components:

  1. It gains value from not being generally known by the general public. This value can be actually realized, or it may be potential value.
  2. It has particular value to others who cannot acquire the information. (E.g., competing businesses.)
  3. Its secrecy has been maintained through reasonable efforts.

These aspects of a trade secret can make it a valuable intellectual property asset for many businesses. Where trade secrets differ from other types of intellectual property like patents, copyrights, and trademarks is that trade secrets are never formally registered with the government for protection. Another difference between trade secrets and other kinds of intellectual property is that trade secrets are, by definition, not publicly recognized.

CUTSA Definition of “Trade Secrets”

The U.S. Patent and Trademark Office (USPTO) defines a “trade secret” as a type of intellectual property. Federal lawmakers recognized the importance of protecting trade secrets in 2016 when they passed the Defend Trade Secrets Act (DTSA) and gave businesses and individuals a right to file a civil suit when their trade secrets are misappropriated. Under the DTSA, any information that derives independent economic value from the fact that it cannot be easily ascertained by others may qualify for protection as a trade secret.

The California Uniform Trade Secrets Act (CUTSA) defines a “trade secret” even more broadly as any information that is not generally known to others who might find it valuable. This means that there is no substantial limit to the types of information that may be protected under California’s trade secret law. Common examples of trade secrets include client lists, company financial data, internal forecasts and projections, advertising plans, designs and other technical plans, formulas, manufacturing techniques, and computer source code. One of the most famous examples of a trade secret is the formula for Coca-Cola.

Basically, if the information is the sort that a competitor would need to spend money or time to discover, then it probably qualifies as a trade secret. But if even one person outside the business already knows the information without it having been disclosed, then it might not be a trade secret.

Proving Trade Secret Misappropriation in California

Winning a trade secret claim requires the plaintiff to first establish that the confidential information at issue does, in fact, qualify as a trade secret. Next, the plaintiff will have to prove that the defendant misappropriated the data.

As set forth by California law, trade secret misappropriation can include any of the following acts involving confidential information:

  • Wrongful acquisition.
  • Wrongful use.
  • Wrongful disclosure.

A person or entity is deemed to have “misappropriated” a trade secret when they use illegal or improper means to acquire it. This can include theft, bribery, espionage, a misrepresentation, or a breach of duty to maintain the secret. In addition to prohibiting the illegal acquisition of a trade secret, the CUTSA also explicitly bars anyone from disclosing a trade secret without consent of the rightful owner, as well as prohibiting anyone from using a trade secret that was illegally acquired. This means that both the person who took or disclosed the trade secret and the person or company who later used the information may be liable under California trade secret law.

Contact the Los Angeles Trade Secret Lawyers at Tauler Smith LLP

If you are a business owner whose proprietary information was stolen by an ex-employee, disclosed to a competitor, or used by another company, then you may have a valid claim for trade secret misappropriation. Your best move now is to speak with a Los Angeles trade secret lawyer who has experience bringing these claims in California courts. The legal team at Tauler Smith LLP understands the nuances of both federal and state laws addressing trade secrets, and we know how to win trade secret litigation.

Contact us today by calling 310-590-3927 or sending an email.